N.Y. Criminal Procedure Law § 300.50: Court's charge; submission of lesser included offenses

§ 300.50 Court's charge; submission of lesser included offenses.

1. In submitting a count of an indictment to the jury, the court in

its discretion may, in addition to submitting the greatest offense which

it is required to submit, submit in the alternative any lesser included

offense if there is a reasonable view of the evidence which would

support a finding that the defendant committed such lesser offense but

did not commit the greater. If there is no reasonable view of the

evidence which would support such a finding, the court may not submit

such lesser offense. Any error respecting such submission, however, is

waived by the defendant unless he objects thereto before the jury

retires to deliberate.

2. If the court is authorized by subdivision one to submit a lesser

included offense and is requested by either party to do so, it must do

so. In the absence of such a request, the court's failure to submit such

offense does not constitute error.

3. The principles prescribed in subdivisions one and two apply equally

where the lesser included offense is specifically charged in another

count of the indictment.

4. Whenever the court submits two or more offenses in the alternative

pursuant to this section, it must instruct the jury that it may render a

verdict of guilty with respect to any one of such offenses, depending

upon its findings of fact, but that it may not render a verdict of

guilty with respect to more than one. A verdict of guilty of any such

offense is not deemed an acquittal of any lesser offense submitted, but

is deemed an acquittal of every greater offense submitted.

5. Where the indictment charges a crime committed by the defendant

while he was under the age of sixteen but a lesser included offense

would be one for which the defendant is not criminally responsible by

reason of infancy, such lessor included offense may nevertheless be

submitted to the jury in the same manner as an offense for which the

defendant would be criminally responsible notwithstanding the fact that

a verdict of guilty would not result in a criminal conviction.

6. For purposes of this section, the offenses of rape in the third

degree as defined in the former subdivision three or subdivisions seven,

eight and nine of section 130.25 of the penal law and a crime formerly

defined in subdivision three of section 130.40 of the penal law, are not

lesser included offenses of rape in the first degree, a crime formerly

defined in section 130.50 of the penal law, or any other offense.

Notwithstanding the foregoing, any such offense may be submitted as a

lesser included offense of the applicable first degree offense when (i)

there is a reasonable view of the evidence which would support a finding

that the defendant committed such lesser offense but did not commit the

greater offense, and (ii) both parties consent to its submission.